sured by lives in being, no period for simply a term of years being valid unless the ultimate limit be lives in being.10

§ 1159. The Same Subject.

The rule against perpetuities is by far the most important restraint which the law places upon the right to create future interests. The rule deals only with future estates. The remoteness against which the rule is directed is remoteness in the commencement or first taking effect of limitations, and not in the determination of interests.11 The statutes on the subject are not, in all cases, against perpetuities, some simply prohibit restraints upon alienation. But a declaration that a grant of a future estate is void in its creation if it suspends the power of alienation beyond the prescribed period is to the same end; and it is void if by any possibility it may so restrict the power of alienation. The doctrine of remoteness has no materiality under many statutes except as it affects alienability.12 The rule promotes alienability by destroying future interests which would tend to prevent alienation.13

The object of the rule is to defeat the intention of the testator where his intent is to violate the rule, and not otherwise. The object is also to defeat any portion of

10 Goldtree v. Thompson, 79 Cal. 613, 615, 22 Pac. 50; Estate of Walkerly, 108 Cal. 627, 49 Am. St. Rep. 97, 41 Pac. 772; Penfield v. Tower, 1 N. D. 216, 46 N. W. 413; Moore v. Moore, 47 Barb. (N. Y.) 257; Schettler v. Smith, 41 N. Y. 328.

11 Barton v. Thaw, 246 Pa. St.

348, Ann. Cas. 1916D, 570, 92 Atl. 312.

12 Estate of Cavarly, 119 Cal. 406, 51 Pac. 629.

13 Barton v. Thaw, 246 Pa. St. 348, Ann. Cas. 1916D, 570, 92 Atl. 312. See, also, Anderson v. Menefee, (Tex. Civ. App.) 174 S. W. 904.

the will, the effect of which would be to violate the rule, whatever may have been the testator's intention.1

§ 1160. To What Interests the Rule Applies.

The rule against perpetuities applies to contingent remainders15 and executory devises, 16 but not to reversions; it applies to property and not to contract.18 It embraces powers to sell, exchange, or lease property.19 The rule is the same in relation to both personal and real estate,20 and the same as to equitable and legal interests.21 It relates to the commencement of future estates or interests and not to their duration,22 and it is

therefore immaterial whether the estate is in fee, for life or for years. In all such cases the validity of the limitation depends upon the same point-whether the event, upon the happening of which it is to take effect, is certain to occur within the period which the rule defines.23

§ 1161. Contingent and Vested Interests Distinguished.

A limitation which provides for a future estate whose vesting is dependent upon a contingency which will not be determined until the expiration of a life which came into existence after the death of the testator is within the prohibition of the rule against perpetuities,24 as is also any inalienable and indestructible estate created to continue longer than the prohibited period.25 No interest subject to a condition precedent is valid unless the condition is one which must be fulfilled within twenty-one years after some life in being, with the period of gestation added.26 An estate in remainder can not be created to take effect

Scott, 113 U. S. 340, 28 L. Ed. 1015, 5 Sup. Ct. Rep. 652; Lyons v. Bradley, 168 Ala. 505, 53 So. 244; Mettler v. Warner, 243 Ill. 600, 134 Am. St. Rep. 388, 90 N. E. 1099; Phillips v. Harrow, 93 Iowa 92, 61 N. W. 434; Bowerman v. Taylor, 126 Md. 203, 94 Atl. 652; True Real Estate Co. v. True, (Me.) 99 Atl. 627; Ortman v. Dugan, (Md.) 100 Atl. 82.

23 Gambrill v. Gambrill, 122 Md. 563, 89 Atl. 1094; Bowerman v. Taylor, 126 Md. 203, 94 Atl. 652. 24 Gambrill v. Gambrill, 122 Md. 563, 89 Atl. 1094.

25 Mifflin's Appeal, 121 Pa. 205, 6 Am. St. Rep. 781, 1 L. R. A. 453, 15 Atl. 525.

26 Whitby v. Mitchell, L. R. 44 Ch. Div. 85; In re Hargreaves, L. R. 43 Ch. Div. 401; Terrell v. Reeves, 103 Ala. 264, 16 So. 54; Madison v. Larmon, 170 Ill. 65, 62 Am. St. Rep. 356, 48 N. E. 556; Quinlan v. Wickman, 233 Ill. 39, 17 L. R. A. (N. S.) 216, 84 N. E. 38; Drury v. Drury, 271 Ill. 336, 111 N. E. 140; Kolb v. Landes, 277 Ill. 440, 115 N. E. 539; Leonard v. Haworth, 171 Mass. 496, 51 N. E. 7.

after such period,27 the rule being that a condition precedent to which an interest is subject must be one to be fulfilled within twenty-one years after some life in being at the creation of the interest. This rule is in force in every state where the principles of the common law prevail, excepting as it may have been modified by statute.28

The rule against perpetuities applies to interests in realty or personalty, whether legal or equitable,29 but has no application to an interest which is vested, for a vested interest by its very nature can not be subject to a condition precedent.30 If there is a present right to a future possession, though the right may be defeated by some future event, there is nevertheless a vested estate or interest. A vested equitable interest can not fall

31

27 Miller v. Weston, 25 Colo. App. 231, 138 Pac. 424; United States Fidelity & Guaranty Co. v. Douglas's Trustee, 134 Ky. 374, 20 Ann. Cas. 993, 120 S. W. 328.

28 Drury v. Drury, 271 III. 336, 111 N. E. 140; O'Hare v. Johnston, 273 I. 458, 113 N. E. 127, reversing 194 Ill. App. 153; Lawrence's Estate (Appleton's Appeal), 136 Pa. St. 354, 20 Am. St. Rep. 925, 11 L. R. A. 85, 20 Atl. 521.

29 O'Hare v. Johnston, 273 Ill. 458, 113 N. E. 127, reversing 194 Ill. App. 153; Gambrill v. Gambrill, 122 Md. 563, 89 Atl. 1094; Lawrence's Estate (Appleton's Appeal), 136 Pa. St. 354, 20 Am. St. Rep. 925, 11 L. R. A. 85, 20 Atl. 521.

30 Sioux City Terminal R. Co. v. Trust Co. of North America, 82 Fed. 124, 27 C. C. A. 73; Terrell v. Reeves, 103 Ala. 264, 16 So.

54; Lyons v. Bradley, 168 Ala. 505, 53 So. 244; Farnam v. Farnam, 53 Conn. 261, 278, 2 Atl. 325, 5 Atl. 682; Tarrant v. Backus, 63 Conn. 277, 28 Atl. 46; Johnson v. Edmond, 65 Conn. 492, 33 Atl. 503; Lunt v. Lunt, 108 Ill. 307; Lawrence v. Smith, 163 Ill. 149, 45 Atl. 259; O'Hare v. Johnston, 273 Ill. 458, 113 N. E. 127, reversing 194 Ill. App. 153; Andrews v. Lincoln, 95 Me. 541, 56 L. R. A. 103, 50 Atl. 898; Toms v. Williams, 41 Mich. 552, 2 N. W. 814; Lawrence's Estate (Appleton's Appeal), 136 Pa. St. 354, 20 Am. St. Rep. 925, 11 L. R. A. 85, 20 Atl. 521; Johnston's Estate, 185 Pa. St. 179, 64 Am. St. Rep. 621, 39 Atl. 879; Green v. Green, 255 Pa. 224, 99 Atl. 801; Edward's Estate, 255 Pa. 358, 99 Atl. 1010.

31 Neel's Estate, 252 Pa. St. 394, 97 Atl. 502.

within the rule,32 but a contingent equitable interest may do so.

§ 1162. Provisions Construed as of Date of Testator's Death.

In construing a will with reference to the rule against perpetuities, the decision must be based on facts existing at the date of the testator's death.33 Conditions existing at the date of the will have no effect on the validity of the limitation unless, of course, they remain unchanged. For although conditions existing when the will is executed would render the limitation void, they have no effect if, by a change of circumstances, conditions which do not invalidate the provision exist at the testator's death.31

34

§ 1163. A Rule of Law: Possibility of Violation of Rule the Test.

The rule against perpetuities is not a rule of construction but a peremptory command of the law. Its object is to defeat the intention of any one who attempts to violate it. Any instrument providing for the creation of a future interest in property is first to be construed as if

32 In re Randell, 38 Ch. D. 213, 57 L. J. Ch. 899, 58 L. T. N. S. 626; Hopkins v. Grimshaw, 165 U. S. 342, 41 L. Ed. 739, 17 Sup. Ct. 401; Abend v. McKendree College etc. Commrs., 174 Ill. 96, 50 N. E. 1052; Flanner v. Fellows, 206 Ill. 136, 68 N. E. 1057.

Contra: Towle v. Doe, 97 Me. 427, 54 Atl. 1072.

33 Dungannon v. Smith, 12 Cl. & F. 546; Hale v. Hale, 3 Ch. Div. 643; In re Wilmer's Trusts, L. R.

(1903) 2 Ch. Div. 411; McArthur v. Scott, 113 U. S. 340, 28 L. Ed. 1015, 5 Sup. Ct. 652; In re Steele's Estate, 124 Cal. 533, 57 Pac. 564; Johnson v. Edmond, 65 Conn. 492, 33 Atl. 503; Hosea v. Jacobs, 98 Mass. 65; Mullreed v. Clark, 110 Mich. 229, 68 N. W. 138, 989; Hillen v. Iselin, 144 N. Y. 365, 39 N. E. 368.

34 Picken v. Matthews, 10 Ch. Div. 264; Morgan v. Gronow, L. R. 16 Eq. 1; Johnson v. Edmond, 65 Conn. 492, 33 Atl. 503.